ALA is delighted to announce that a recent positive adjudication award, where ALA represented the referring party, has been successfully enforced in the Technology and Construction Court (TCC) in London.
The enforcement proceedings were heard in the TCC on 9 July 2019 and the judgment was published in October (Howsons Ltd vs Redfearn [2019]).
The judgment can be viewed here.
The case dealt with a relatively undeveloped area of law, section 106 of the Housing Grants Construction and Regeneration Act 1996 (the Act); specifically the residential occupier exclusion.
ALA Director, Byron Tyson, and ALA Senior Quantity Surveyor, Daniel Harrison, together delivered the adjudication and provide a brief overview of the case and judgement.
Background
ALA was engaged by Howsons Ltd (Howsons), a well-established local mechanical and electrical contractor, in late 2018 to resolve a payment dispute.
The dispute centred on the proper sum due for works undertaken on a high specification development in the Yorkshire Dales on behalf of private clients, Mr & Mrs Redfearn (Redfearn). The project was the conversion of a redundant agricultural barn into a high specification ‘live/work unit’, and Howsons was engaged to provide a complete plumbing, heating and electrical installation.
Howsons’ works were generally carried out from July 2015 to July 2016 and the final invoices remained unpaid by Redfearn for two years.
ALA undertook an initial review of the position, setting out the facts in a briefing paper, with the objective of engendering a settlement. It became apparent that the parties’ positions could not be reconciled and that this dispute would not be resolved without recourse to formal proceedings.
Residential Occupier Exclusion
A live/work unit is defined by Craven District Council in their planning guidance as a property that is designed primarily for employment purposes, but which also includes ancillary residential space connected to the employment premises. This is a strict planning condition and the building must accommodate a genuine business use.
ALA was of the opinion that, due to the commercial aspect, the contract fell within the ambit of the Act and the right to statutory adjudication applied. Redfearn engaged a well-established regional law firm to represent their interests, who disagreed with ALA’s assertion and contended that Redfearn were residential occupiers, pursuant to the s.106 exemption of the Act.
In February 2019, ALA referred the dispute to adjudication via the RICS. Redfearn’s solicitors raised an immediate jurisdictional challenge on the basis of the residential occupier exclusion. The appointed adjudicator, Mr Lewis Ayers, invited submissions from the parties on this issue. After considering the case law, facts and party submissions, Mr Ayers decided that he had jurisdiction and the adjudication would continue. Redfearn continued to reserve their position and took part in the proceedings without prejudice to their jurisdictional challenge.
Adjudication Award & Enforcement
The adjudication ran its course, with robust submissions from both parties, and the adjudicator decided that a significant payment was due to Howsons and that Redfearn were liable for the adjudicator’s fees. However, Redfearn did not make payment.
ALA encouraged Redfearn and their solicitors to settle the award, emphasising the high costs involved with enforcement proceedings and that the TCC would likely find in Howsons’ favour. As Chadwick LJ put it in Carillion Construction v Devonport [2005], attempts to resist enforcement on the grounds of jurisdiction are likely to be a waste of time and money “save in the plainest cases”.
However, Redfearn remained resolute in their position and Howsons sought summary judgement.
ALA approached Mr David Weare and Mr Christian Charles of Fladgate LLP to act on Howsons behalf in the enforcement proceedings. Fladgate instructed barrister Mr James Frampton of Keating Chambers as counsel.
ALA supplied Fladgate with the relevant evidence and information, providing a summary of the case and liaising closely as required.
ALA Added Value
During the enforcement process, ALA made a Freedom of Information Request to Craven District Council to obtain evidence beneficial to Howsons’ jurisdiction position. This evidence was utilised by counsel in the Skeleton Argument, referenced at the hearing and in the Judgement.
Enforcement Procedure & Summary Judgment
The enforcement followed the typical procedure with a Claim Form, Application Notice, Witness Statement, Particulars of Claim, followed by Hearing Bundles and Skeleton Arguments.
The hearing date was scheduled for 9 July 2019 and the appointed Judge was HHJ Nigel Bird.
HHJ Bird found in favour of Howsons and the adjudicator’s award was enforced in full, plus interest. Redfearn were also ordered to pay 85% of Howsons’ legal costs; this was, naturally, in addition to Redfearn’s own legal costs, which were substantial. Redfearn’s application for permission to appeal was refused.
ALA Observations
This case was important to our client and to the team at ALA and we were delighted to chalk up another adjudication win.
In our experience, it is now rare that an adjudicator’s award is contested by the unsuccessful party on such weak grounds, especially when they are legally advised, given the high cost and high probability of failure. There is a well-established and well documented record of the courts enforcing adjudicator’s decision in the overwhelming majority of instances and we were confident of the strength and merits of our arguments in this case.
The jurisdiction point was concerned with the definition and implications of a live/work unit; Redfearn intended to occupy part of the development as their residence but its primary purpose was strictly designated for business use. This commercial element was a mandatory condition of the planning permission and fatal to Redfearn’s case.
In the adjudication, ALA argued that the section 106 exclusion only applied in extremely narrow circumstances and referenced Samuel Thomas Construction Limited v Bick and Bick (2000), which related to a jurisdiction point based on a commercial element, and Westfields Construction Ltd v Lewis [2013], for guidance of the court’s general approach.
The court’s strict treatment of section 106 set out in Westfields was further underlined in this case.
In the TCC, Redfearn attempted to argue that they were occupying all of the property as their residence, save for a small home office. HHJ Bird highlighted that this would be in direct contravention of the planning conditions.
HHJ Bird, at paragraph 16, made the following critical statement:
“…section 106 must be read so as to require that the occupation of the relevant building as dwelling house is lawful. It would in my judgment be wrong to read the statute in such a way that an individual who was prepared to occupy a property in breach of planning permission was rewarded with exemption from a statutory scheme. If the occupation could be unlawful, in broad terms the employer would be entitled to rely upon his own wrong to come within an exception to the Act and to rob the contractor of the benefit of the scheme.”
[Emphasis Added]
After considering the evidence and case law, HHJ Bird concluded at paragraph 22 and 23:
“In my judgment, the exemption that the Defendants seek does not apply to them. From the evidence prepared for the present application and for the adjudication, it seems clear that there is no lawful right to occupy the barn as a dwelling house. The burden to satisfy me that the exemption applies lies on the Defendants. In order to discharge that burden they would in my judgment need to establish that their use of the barn is a lawful, authorised, use. The Defendants have it seems to me not made any effort to establish any such use. In fact their evidence establishes the contrary and appears to treat planning control as an inconvenience which they are free to disregard (see para.12 of the Defence where the live/work designation for which planning permission was granted is described as a “label” which “serves as a distraction form the facts”).
I am therefore prepared to grant summary judgment to the contractor on the ground that there was no lawful intention to occupy a dwelling house at the time the contract was entered into.”
[Emphasis Added]
The alternative case put forward by Redfearn concerned the split of floor areas between commercial and residential, which was given short shrift by HHJ Bird:
“Applying the common-sense principles that Coulson J (as he then was) set out, I am entirely satisfied that it would not be appropriate to describe these works as principally relating to a dwelling.”
HHJ Bird awarded Howson 6% interest on the unpaid sums to: “encourage parties to comply with adjudication awards”.
This case further underlines the courts strict approach to the residential occupier exclusion.
The enforcement process was handled brilliantly by the team at Fladgate and Keating, the written court submissions and advocacy were exemplary, a great team effort.
Byron Tyson, Director